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[2012] ZAFSHC 165
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Koalane and Another v Senkhe and Others (2854/2012) [2012] ZAFSHC 165 (6 September 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2854/2012
In the matter between:-
KUNATU STEPHEN
KOALANE
.......................................
First
Applicant
MASILONYANA LOCAL
MUNICIPALITY
...................
Second
Applicant
and
M M SENKHE
...............................................................
First
Respondent
P L SENKHE
............................................................
Second
Respondent
H D SETHOBA
............................................................
Third
Respondent
_____________________________________________________
HEARD ON:
16 AUGUST 2012
_____________________________________________________
JUDGMENT BY:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
6 SEPTEMBER 2012
_____________________________________________________
[1]
This is an application to obtain access to information contained in a
video recording.
[2]
The first applicant is the mayor of the second applicant, a local
municipality. It appears from the sheriff’s return of
service
of the application that the first respondent has passed away. The
second respondent is his surviving spouse. The third
respondent is
cited as an adult male photographer of 1322 Lusaka Park, Theunissen
whose further particulars are unknown to the
applicants. Neither the
second nor the third respondents oppose the application.
[3]
The applicants claim the following orders:
“
1.
Declaring that the applicants are, in terms of the provisions of
section 32 of the Constitution of the Republic of South Africa,
1996,
and
section 9(a)(ii)
of the
Promotion of Access to Information Act, 2
of 2000
, entitled to access to the video recording that was made on 1
January 2012 of the funeral proceedings of the late Me. Mariana
Senkhe
that took place at the Masilo Community Hall, Tehunissen (
the
video recording
).
2. In terms
whereof the respondents are jointly and separately ordered, the one
complying, the other to be absolved, to provide
the applicants access
to the video recording by delivering a copy thereof to Hewetson
Incorporated Attorneys, at their offices
at 300 Stateway, Welkom
within 14 days from the date of this order.
3. That the
applicants are to pay the reasonable costs that the respondents may
have to incur in order to obtain a copy of the video
recording, the
one paying, the other to be absolved
pro tanto
.”
[4]
The applicants state that a video recording made by the third
respondent at the funeral of the daughter of the first and second
respondents,
inter alia
portrays a speech made by one Mr
Tshepo Kobane. They allege that during this speech the first
applicant was defamed and all other
council members of the second
applicant were “... insulted and possibly defamed”. The
applicants state that access
to the video recording is required in
order to exercise their rights against Mr Kobane. I do not understand
what rights the second
applicant could exercise against Mr Kobane,
but do not find it necessary to make any finding in this regard.
[5]
It cannot be found on the evidence that the third respondent is in
possession of a video recording as described above and in
any event
he appears to have made the recording on behalf of the first and
second respondents. I do accept however, that the second
respondent
is in possession thereof. For the reasons that follow however, the
application can in my view not succeed, despite the
absence of
opposition thereto.
[6]
Section 32 of the Constitution provides as follows:
“
(1) Everyone
has the right of access to-
(a)
any
information held by the state; and
(b)
any information
that is held by another person and that is required for the exercise
or protection of any rights.
(2) National legislation must be
enacted to give effect to this right, and may provide for reasonable
measures to alleviate the
administrative and financial burden on the
state.”
[7] The national
legislation envisaged in section 32(2) is the Promotion of Access to
Information Act 2 of 2000 (PAIA). It is clear
from the long title,
the preamble and section 9 of PAIA that the object thereof is to give
effect to the constitutional right to
access to information in terms
of both section 32(1)(a) and (b).
[8] PAIA however only
provides for access to recorded information in the possession or
under the control of a public body or a private
body. The definition
of “record” is the following:
“
... of, or
in relation to, a public or private body, means any recorded
information:
regardless of form or medium;
in possession or under control of
that public or private body, respectively; and
whether or not it was created by that
public or private body, respectively.”
Section 3 provides that
PAIA is applicable to a record of a public body and a record of a
private body, regardless of when the record
came into existence. Part
2 of PAIA deals with access to records of public bodies and Part 3
thereof with access to records of
private bodies. Each part
inter
alia
contains chapters in respect of the right of access, manner
of access and grounds for refusal of access to records.
[9] “Private body”
is defined as:
“
(a) a
natural person who carries or has carried on any trade, business or
profession, but only in such capacity;
(b) a partnership which carries or has
carried on any trade, business of profession; or
(c) any former or existing juristic
person,
but excludes a public body.”
[10] It follows that PAIA
does not provide for access to a record of a person such as the
second respondent, namely a private individual
other than in the
capacity of carrying on or having carried on a trade, business or
profession. This is in my judgment the result
of the limitation
and/or balancing of rights envisaged in section 9(b) of PAIA.
[11] In terms of the
principle of constitutional subsidiarity, where legislation has been
enacted to give effect to a constitutional
right, a litigant who does
not challenge the legislation as being inconsistent with the
Constitution, should rely on that legislation
and cannot circumvent
that legislation by attempting to rely directly on the constitutional
right. See
MEC FOR EDUCATION, KWAZULU-NATAL, AND OTHERS v
PILLAY
[2007] ZACC 21
;
2008 (1) SA 474
(CC) at 488 – 489 para [40] and
MAZIBUKO AND OTHERS v CITY OF JOHANNESBURG AND OTHERS
2010 (4) SA 1
(CC) at 23 – 24 para [73]. See also
INSTITUTE
FOR DEMOCRACY IN SOUTH AFRICA AND OTHERS v AFRICAN NATIONAL CONGRESS
AND OTHERS
2005 (5) SA 39
(C) at 48 – 50 paras [14] –
[19].
[12] In the result the
application is dismissed.
________________________
C.H.G. VAN DER MERWE,
J
On behalf of applicants:
Adv B Knoetze SC
Instructed by:
Stander and Partners
BLOEMFONTEIN
/sp